J-S34030-17
2017 PA Super 414
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRIAN THOMAS MAGEE, JR.
No. 3459 EDA 2016
APPEAL OF: SCHINDLER LAW GROUP,
LLC, THOMAS K. SCHINDLER, ESQUIRE,
AND JOHN H. PAVLOFF, ESQUIRE
Appeal from the Order Dated October 19, 2016
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0003719-2015
CP-15-CR-0003720-2015
CP-15-CR-0003721-2015
BEFORE: BOWES, J., SOLANO, J., and PLATT, J.*
OPINION BY SOLANO, J.: FILED DECEMBER 27, 2017
Appellants Schindler Law Group, LLC, Thomas K. Schindler, Esquire,
and John H. Pavloff, Esquire (collectively, “Schindler”) appeal from the order
denying Schindler’s motion to withdraw as criminal defense counsel for Brian
Thomas Magee, Jr. We affirm.
Magee was arrested and imprisoned in September 2015 for defrauding
three customers by accepting deposits for home improvements and then
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*
Retired Senior Judge assigned to the Superior Court.
J-S34030-17
failing to perform the work. 1 The three cases were consolidated for trial.
Magee remained in custody because he was unable to post bail.
Magee retained Schindler in October 2015. According to Schindler, its
engagement letter stated that Schindler would represent Magee for a flat fee
that did not include representation at trial, and that a separate engagement
letter and an additional fee would be required for trial representation.
Schindler’s Brief at 12.2
On March 15, 2016, Schindler moved for a temporary modification of
Magee’s bail. Magee’s defense was that his failure to complete the work at
the three victims’ homes was a breach of his contractual obligations, but not
a criminal offense. Schindler claimed it could not prepare that defense
without Magee’s help in gathering documents and other materials that were
voluminous and had to be assembled and reviewed prior to trial. On May 4,
2016, the trial court modified Magee’s bail to allow his release to assist
Schindler with trial preparation.
After several continuances, Magee’s trial was scheduled for
October 31, 2016. The trial court summarized:
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1
More specifically, he was charged with home improvement fraud, 73 P.S.
§ 517.8(a)(1) & (2), and theft by deception, 18 Pa. C.S. § 3922(a)(1).
2
The engagement letter is not in the certified record or the reproduced
record, and although Schindler purports to quote the letter in its brief, we
may not consider it in that form. See Commonwealth v. Preston, 904
A.2d 1, 6 (Pa. Super. 2006) (failure to ensure that document is in certified
record “cannot be remedied merely by including copies of the missing
documents in a brief”), appeal denied, 916 A.2d 632 (Pa. 2007); Pa.R.A.P.
1921 Note (documents must be included in the certified record or, in
appropriate cases, the reproduced record).
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[Magee]’s cases were first listed for trial in December 2015
and subsequently continued by [Schindler] seven times. Each
time a Motion for Continuance was submitted, the reason given
by [Schindler] was that more time was needed for review of
[Magee]’s documents in preparation for trial. The last
continuance request and Order dated August 12, 2016 states,
“additional time needed for trial preparation; date certain for
commencement of trial: Tuesday, September 20, 2016; counsel
attached for trial beginning on that date[.]” The attorney for the
Commonwealth realized within a day or two of that Continuance
Order that [he] was unavailable in September, so the parties
agreed to a special listing for trial and attachment of counsel.
That notice of attachment for a four day trial commencing
October 31, 2016 was sent to [Schindler] by Court
Administration on August 17, 2016.
Trial Ct. Op., 11/16/16, at 2 (emphasis in original).
On October 14, 2016, two weeks before Magee’s trial was scheduled to
begin, Schindler filed a motion to withdraw as Magee’s counsel. In that
motion, Schindler represented that most, but not all, of the fixed fee under
its letter agreement with Magee had been paid; it had offered to perform
additional services for Magee, including trial representation, in exchange for
an additional fee; and Magee had replied that he was unable to pay an
additional fee. Mot. to Withdraw at ¶¶ 6, 10, 11. Schindler also averred
that it had “given reasonable warning” to Magee that if it did not receive an
additional fee, it would withdraw as counsel. Id. at ¶ 13.
On October 18, 2016, the trial court held a hearing on Schindler’s
motion to withdraw. Magee arrived late for the hearing. 3 Before Magee
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3
The hearing had originally been scheduled for November 7, 2016; it was
rescheduled on October 17, 2016. Schindler informed Magee of the change,
(Footnote Continued Next Page)
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arrived, Attorney Pavloff told the court that he had given Magee a copy of
the motion to withdraw but did not know Magee’s position on it. N.T.,
10/18/16, at 2. Pavloff further represented that Magee had paid “almost all”
of the fixed fee under the agreement, but had not paid for trial. Id. at 3.
When the court reminded Pavloff that Magee’s case was “specially listed long
ago,” Pavloff responded that, although “we have known for some time it’s a
trial,” he expected either that Schindler would be paid an additional fee for
trial or that the case would be resolved through a plea agreement. Id.
When Magee arrived, Pavloff asked Magee if he opposed Schindler’s
motion, and Magee responded, “No, not at all.” N.T., 10/18/16, at 9.
Magee said that, starting the previous week, he had begun consultations
with three other attorneys. Id. When the court asked how he could pay
another attorney when he could not afford to pay Schindler, Magee
responded, “Have to go to work.” Id. at 10. The trial court expressed
concern that Magee would not be able to pay any attorney and would be
ineligible for a public defender because he was working. Id.
The Commonwealth opposed the motion to withdraw because it would
delay the trial. The Commonwealth pointed out that it had already
subpoenaed twelve witnesses and would be ready for trial on the scheduled
October 31, 2016 trial date. N.T., 10/18/16, at 5. The Commonwealth was
_______________________
(Footnote Continued)
and he indicated that he would “do[] his best to get [there].” N.T.,
10/18/16, at 2.
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not optimistic about a possible plea bargain. Id. At the end of the hearing,
the trial court took the matter under advisement.
The next day, October 19, 2016, the trial court issued an order
denying Schindler’s motion to withdraw. In a footnote, the trial court
explained its reasoning, emphasizing the following facts:
1. [Schindler] stated to the court and averred in [its] Motion
that [it] has been mostly compensated for [its] work to date.
We note [Schindler] did not aver the sum owed, the sum paid, or
the work that has not been compensated.[4]
2. [Schindler] seeks to withdraw two weeks prior to the
commencement of a specially scheduled, discovery intensive jury
trial set to commence on October 31, 2016. We note that the
special date was issued to the parties on August 17, 2016.
3. [Schindler] does not state in [its] Motion how notice was
given or when [it] gave notice to [its] client about [its] desire to
withdraw and therefore, we cannot assess whether sufficient
notice was given to [Magee]. Counsel did indicate that he was
unaware of his client’s position on the Motion and therefore we
can assume that he had not had any discussions with his client
on the topic.
Order, 10/19/16, at 2-3. The court concluded that Schindler “waited until
the last minute to make the court aware of [its] issues with [its] client,” and
“failed to take steps to avoid the foreseeable prejudice of delaying trial, and
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4
In its brief to this Court, Schindler states that when it filed its motion to
withdraw, Magee had paid it $3,225 and owed $1,150, and that the cost of
trial would be approximately $8,000 to $10,000, without costs and
expenses. Schindler’s Brief at 13, 16. These figures were not provided to
the trial court, and we therefore will not consider them in determining
whether the trial court erred. See Commonwealth v. Wrecks, 931 A.2d
717, 722 (Pa. Super. 2007) (appellate court will not consider assertions that
appear only in briefs).
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delaying the ability of [its] client to employ other counsel prior to the jury
trial date of October 31, 2016.” Id. at 3.
On October 27, 2016, Schindler filed a notice of appeal. By an order
entered December 13, 2016, this Court directed Schindler to show cause
why the appeal should not be quashed as interlocutory. Schindler filed a
response in which it contended that the trial court’s order denying the
motion to withdraw was a collateral order appealable under Pa.R.A.P. 313.
On January 6, 2017, this Court discharged the show-cause order and
deferred resolution of the appealability issue to this panel.
On February 6, 2017, Schindler filed its brief, in which it includes the
collateral order issue as the first of three questions presented:
Does the Superior Court have jurisdiction to review the current
matter as an appeal as of right from a collateral order pursuant
to Pa.R.A.P. 313?
Did the lower court commit an error of law and/or an abuse of
discretion when it failed to grant an unopposed Motion for Leave
to Withdraw as Counsel prior to trial where the undisputed
testimony indicated that the client agreed and understood that:
he had engaged Counsel only to represent him up to — but
excluding trial, he had not paid Counsel in full under that original
engagement, had not retained Counsel for representation at
trial, and did not oppose Counsel’s withdrawal?
Did the lower court commit an error of law and/or an abuse of
discretion when it denied Counsel’s Motion to Withdraw in a
criminal matter on the basis of erroneous conclusions and
inferences drawn from “omissions” in the factual record and its
own conclusion, unsupported by the testimony presented, that
the client was not given “reasonable warning” about Counsel’s
intention to withdraw prior to the commencement of trial?
Schindler’s Brief at 10-11.
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Jurisdiction
Schindler contends that the trial court’s order denying its motion to
withdraw is a collateral order appealable under Rule 313(b). The
Commonwealth agrees. See Commonwealth’s Brief at 7-8.5 “Whether an
order is appealable under Pa.R.A.P. 313 is a question of law. As such, our
standard of review is de novo and our scope of review is plenary.” Rae v.
Pa. Funeral Dir. Ass’n, 977 A.2d 1121, 1126 n.8 (Pa. 2009).
The Supreme Court of Pennsylvania has explained:
Otherwise known as the collateral order doctrine, [Appellate]
Rule 313(b) provides that an interlocutory order is collateral and,
therefore, immediately appealable, if it is: “[1] separable from
and collateral to the main cause of action where [2] the right
involved is too important to be denied review and [3] the
question presented is such that if review is postponed until final
judgment in the case, the claim will be irreparably lost.”
K.C. v. L.A., 128 A.3d 774, 777 (Pa. 2015) (quoting Pa.R.A.P. 313(b)).
“With regard to the first prong of the collateral order doctrine, an order is
separable from the main cause of action if it is entirely distinct from the
underlying issue in the case and if it can be resolved without an analysis of
the merits of the underlying dispute.” Id. at 778 (quotation marks and
citation omitted). With regard to the second prong, “a right is important if
the interests that would go unprotected without immediate appeal are
significant relative to the efficiency interests served by the final order rule.
Notably, the rights involved . . . must be deeply rooted in public policy going
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5
The trial court’s opinion does not address this issue.
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beyond the particular litigation at hand.” Id. at 779 (quotation marks and
citations omitted). With regard to the third prong, a right sought to be
asserted on appeal will be “irreparably lost” if, as a practical matter, forcing
the putative appellant to wait until final judgment before obtaining appellate
review will deprive the appellant of a meaningful remedy. See
Commonwealth v. Harris, 32 A.3d 243, 248-51 (Pa. 2011).
Neither party has cited, nor have we found, controlling authority
addressing whether the denial of a petition to withdraw as counsel, based on
a client’s inability to pay, is a collateral order under Rule 313. However, in
Brown v. Pennsylvania R.R., 255 A.2d 554 (Pa. 1969), the Supreme Court
of Pennsylvania held that an order dismissing an attorney’s petition to
withdraw was immediately appealable. 255 A.2d at 555 n.1. In Brown, an
attorney hired by an insurance company to represent its insured sought to
withdraw after the insurance company concluded that the claim was not
covered under the insured’s policy. Id. at 555. The Court explained why
the denial of counsel’s motion to withdraw was appealable:
Even though the often-used rationale for appealability that
appellant has been put “out-of-court” is particularly inapt in the
instant situation where appellant has actually been forced into
court, it is apparent that as to him, the order is an absolute
denial of the relief sought, and could never be raised at any
other time if it were not appealable now.
Id. at 555 n.1.
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Brown was decided before the Supreme Court of Pennsylvania
adopted the collateral order doctrine 6 and before the extensive revision in
1992 of the definition of a final order under Appellate Rule 341. Before
1992, an order was deemed an appealable final order if some part of it had
some aspect of finality or put a party “out of court” on an issue. See G.R.
Darlington, et al., 20 Pa. Appellate Practice § 341:1 (West’s Pa. Prac. Ser.
2016). The Brown decision was a product of that pre-1992 framework, and
the order in Brown would not be appealable under the current version of
Rule 341. In the years between Brown and the 1992 revisions, this Court
upheld appealability in two appeals from orders denying attorneys’ petitions
to withdraw based on nonpayment. See Commonwealth v. Scheps, 523
A.2d 363 (Pa. Super.) (plurality opinion7), appeal denied, 533 A.2d 91 (Pa.
1987); Commonwealth v. Sweeney, 533 A.2d 473, 474 n.1 (Pa. Super.
1987) (relying on Scheps and lack of challenge to appealability, and
considering order denying attorney’s petition to withdraw to be a final
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6
The Court adopted the collateral order doctrine in Bell v. Beneficial
Consumer Discount Co., 348 A.2d 734, 735 (Pa. 1975), and Pugar v.
Greco, 394 A.2d 542, 545 (Pa. 1978). The Court promulgated Rule 313, “a
codification of existing case law with respect to collateral orders,” in 1992.
Pa.R.A.P. 313 Note.
7
Although there was no majority opinion in Scheps, all members of the
panel agreed that the appeal was properly before the court. See Scheps,
523 A.2d at 371 (Olszewski, J., dissenting) (noting that appeal was properly
before the court as a final order under Brown). As a plurality opinion,
Scheps is not binding precedent in this Court. See MacPherson v. Magee
Mem'l Hosp. for Convalescence, 128 A.3d 1209, 1223 (Pa. Super. 2015),
appeal denied, 161 A.3d 789 (Pa. 2016).
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determination). We have not returned to the issue since adoption of the
collateral order rule, however.
In Commonwealth v. Wells, 719 A.2d 729, 730 (Pa. 1998), the
Supreme Court of Pennsylvania held that an order denying a request to
withdraw as counsel based on an alleged conflict of interest was not
appealable under Appellate Rule 313. The attorney filed a petition to
withdraw, and the client (a criminal defendant who claimed that the attorney
had a conflict of interest) appealed the denial of that petition. Id. The
Court held that the order did not satisfy the third requirement of the
collateral order rule:
Appellant’s claim that he is entitled to “conflict-free” PCRA
counsel will not be irreparably lost if the order denying the
Petition to Withdraw is not reviewed at this time. Since
Appellant has a right of appeal if the PCRA court denies his
petition, the order denying the Petition to Withdraw, and
consequently the merits of the conflict issue, can be reviewed if
or when Appellant files an appeal from the court’s PCRA decision.
Id. at 731. Notably, the appeal in Wells was filed by the client (whose
appellate rights would remain once a final judgment was entered), and not
by the lawyer seeking to withdraw. In that connection, we have explained
that “[t]he collateral order inquiry is necessarily dependent upon the party
raising its application, as the questions asked relate directly to the party
seeking an appeal.” Commonwealth v. Montgomery, 799 A.2d 149, 154
n.6 (Pa. Super. 2002). Thus, “appealability at times depends upon the
status of the party seeking relief and its opportunity for redress of an
allegedly erroneous order.” Id.
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In Commonwealth v. Reading Group Two Properties, Inc., 922
A.2d 1029 (Pa. Cmwlth. 2007), the Commonwealth Court held that the
denial of an attorney’s petition to withdraw, based on his client’s failure to
pay fees, was a collateral order under Appellate Rule 313. Id. at 1033. The
court distinguished Wells:
Unlike Wells[,] where a new hearing could be granted along
with new counsel, the present controversy involves a matter
where the rights of counsel would be lost if the matter proceeded
any further.
Once a final judgment is reached in the underlying action, the
right of counsel to withdraw will become moot.
Id.
This case is similar to Reading Group, and although the
Commonwealth Court’s decision is not precedential in this Court,8 we reach
the same result here. Schindler sought to withdraw based on Magee’s
inability to pay for its work during a trial. The order denying Schindler’s
motion to withdraw presents issues “separable from and collateral to the
main cause of action” because they are “entirely distinct from the underlying
issue” in Magee’s case and “can be resolved without an analysis of the
merits of the underlying” criminal matter. See K.C., 128 A.3d at 778.
Moreover, an order requiring an attorney to represent a client without
compensation involves important rights — for the client, the right to counsel,
and for the attorney, the right to earn a livelihood. See Reading Group,
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8
See, e.g., Petow v. Warehime, 996 A.2d 1083, 1089 n.1 (Pa. Super.),
appeal denied, 12 A.3d 371 (Pa. 2010).
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922 A.2d at 1033 (implicitly finding that second collateral order requirement
had been met). Finally, the rights of Schindler will be lost if it cannot appeal
immediately; once a trial has taken place, Schindler’s motion to withdraw
will have become moot. See Brown, 255 A.2d at 555 n.1; Reading
Group, 922 A.2d at 1033.
For the foregoing reasons, we agree with the parties that the order
appealed from is an appealable collateral order. We therefore have
jurisdiction over this appeal.9
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9
We are aware that this result does not come without costs. Under
Appellate Rule 1701, a trial court normally loses jurisdiction once an appeal
is filed. Although Rule 1701(c) permits the trial court to continue to act on
those parts of a case that are separate from the issue on which a collateral-
order appeal is taken, an order regarding who may be counsel in a case is
not likely to be so unrelated to the remaining parts of the case as to permit
the rest of the trial court proceedings to move forward. See generally
Commonwealth v. McClure, 172 A.3d 668, 698-99 (Pa. Super. 2017);
Commonwealth v. Hall, 476 A.2d 7, 10 (Pa. Super. 1984). Permitting an
immediate appeal from an order denying criminal defense counsel’s request
for withdrawal therefore risks stopping a criminal proceeding in its tracks —
as apparently has occurred here — and bestowing on defendants a powerful
tool for delay. But we have no cause to assume that counsel will make
withdrawal motions in bad faith, and we trust that in those cases where
questions along such lines arise, the trial court will inform us of relevant
concerns. The rules always permit a party to seek appellate expedition or
other appropriate relief.
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Petition to Withdraw
Turning to the merits of this appeal, we review a trial court’s denial of
counsel’s petition to withdraw under the abuse of discretion standard. C.E.
Williams Co. v. Henry B. Pancoast Co., 194 A.2d 189, 191 (Pa. 1963);
Sweeney, 533 A.2d at 474.
Schindler contends that the trial court’s denial of its motion to
withdraw was an abuse of discretion or an error of law because (1) Magee
did not oppose the motion and “had three other attorneys lined up for
possible representation at trial”; (2) its engagement by Magee was limited to
pretrial matters and specifically excluded trial and post-trial representation;
(3) Magee had failed to fulfill his financial obligations under the letter
agreement and told Schindler that he would not be able to fulfill them going
forward; and (4) Schindler “continually notified Magee of his failure to meet
[his] financial obligations and of Counsel’s intent to withdraw if the case
went to trial without Magee retaining and paying Counsel for trial services.”
Schindler’s Brief at 23-24. Schindler also argues that its withdrawal would
result in only “a slight delay in the matter being called to trial” and would
not cause prejudice to Magee. Id. at 24.
The Commonwealth argues that the trial court acted within its
discretion in denying the petition to withdraw and emphasizes that (1)
Schindler made no attempt to withdraw until two weeks before trial, even
though a notice of attachment for a four-day trial was sent two months
earlier; (2) Schindler sought and was granted numerous continuances to
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allow more time to prepare a defense and review documents; and (3) the
Commonwealth had already subpoenaed numerous witnesses when
Schindler filed its petition to withdraw. The Commonwealth asserts that
“[h]aving to wait for [Magee] to find new counsel, and for that counsel to
prepare for trial, would significantly burden the Commonwealth, and unduly
delay trial[, e]specially in light of counsel’s indication of the amount of
preparation and discovery required.” Commonwealth’s Brief at 14. The
Commonwealth also contends that the hearing transcript demonstrates that
Mr. Pavloff “was not clear about what type, if any, [of] notice he provided to
his client about his withdrawal.” Id. at 16.
The trial court denied Schindler’s motion based on its finding that
Schindler did not act “to minimize the inconvenience to the client due to [its]
withdrawal.” Trial Ct. Op. at 5 (quoting Commonwealth v. Roman,
Appeal of Zaiser, 549 A.2d 1320, 1332 (Pa. Super. 1988)). Rather,
Schindler “created [its] own emergency.” Id. The court elaborated:
While the court feels very strongly that lawyers are entitled to be
compensated for their work, in this case, [Schindler] waited until
the last minute to make the court aware of [its] issues with [its]
client. Given that [Magee] has made payments to [Schindler],
there is no reason to believe [Magee] will not pay [Schindler] in
the future after [Magee] goes back to work. [Schindler] failed to
take steps to avoid the foreseeable prejudice of delaying trial,
and delaying the ability of [its] client to employ other counsel
prior to the jury trial date of October 31, 2016. There was
sufficient time for [Schindler] to take the necessary steps when
notice of counsel’s attachment for trial was given on August 17,
2016, a date agreed to after extensive discussion between the
parties and the court, over the course of months, as to the need
for a special listing of this four day trial because of the number
of witnesses involved and the complexity of the case.
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Id. at 5-6.
The Rules of Criminal Procedure provide that an attorney for a
defendant may not withdraw without leave of court. Pa.R.Crim.P.
120(B)(1).10 A comment to the rule explains:
The court must make a determination of the status of a case
before permitting counsel to withdraw. Although there are many
factors considered by the court in determining whether there is
good cause to permit the withdrawal of counsel, when granting
leave, the court should determine whether new counsel will be
stepping in or the defendant is proceeding without counsel, and
that the change in attorneys will not delay the proceedings or
prejudice the defendant, particularly concerning time limits. In
addition, case law suggests other factors the court should
consider, such as whether (1) the defendant has failed to meet
his or her financial obligations to pay for the attorney’s services
and (2) there is a written contractual agreement between
counsel and the defendant terminating representation at a
specified stage in the proceedings such as sentencing. . . .
Pa.R.Crim.P. 120, Cmt. This Court has said:
No brightline rules exist to determine whether a trial court has
abused its discretion in denying a Petition to Withdraw as
counsel. A balancing test must be utilized to weigh the interests
of the client in a fair adjudication and the Commonwealth in the
efficient administration of justice. Thus, a resolution of the
problem turns upon a case by case analysis with particular
attention to the reasons given by the trial court at the time the
request for withdrawal is denied.
Sweeney, 533 A.2d at 481 (footnote omitted). The balancing test includes
consideration of “the interests of the attorney seeking withdrawal, i.e.,
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10
Rule 120(A)(4) states, “An attorney who has been retained or appointed
by the court shall continue such representation through direct appeal or until
granted leave to withdraw by the court pursuant to paragraph (B).” Rule
120(B)(1) then states, “Counsel for a defendant may not withdraw his or her
appearance except by leave of court.”
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factors including, but not limited to, the amount of time, money and energy
already expended on the case and whether counsel’s withdrawal would
prejudice the client so as to amount to a ‘desertion’ of the latter’s cause.”
Id. at 481 n.10.
In several cases, we have reversed the denial of an attorney’s motion
to withdraw based on nonpayment of fees. For example, in Scheps,
although there was no majority opinion explaining the court’s rationale, two
of the three judges on the panel agreed that the trial court erred in denying
an attorney’s motion to withdraw. See Scheps, 523 A.2d at 370 (Cercone,
J.), 371 (Wieand, J., concurring and dissenting). The attorney in Scheps
sought to withdraw after “it became apparent that Mr. Scheps would be
unable to pay [the lawyer] his present unpaid fees, which amounted to
$6,000 above the original retainer[,] and would be unable to pay fees for
future services[,] which were estimated to be in the area of $150,000, in
trying a case that would last 2-3 months . . . .” Id. at 365 (Cercone, J.).
The lawyer notified Scheps of his intention to withdraw one month before
filing his petition. Id. At the time of the withdrawal hearing, the case was
not ready for trial. Id. at 370. At the hearing, Scheps said he did not wish
to continue with his attorney because he could not “in good conscience” ask
his lawyer to continue to represent him when he could not pay. Id. at 369,
372.
In the lead opinion in Scheps, Judge Cercone concluded that the
attorney’s withdrawal was mandatory under the Disciplinary Rules because
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Scheps had discharged him, and the trial court had no discretion to deny the
motion. Scheps, 523 A.2d at 366-67. 11 Judge Cercone also stated,
“Permitting counsel’s withdrawal when he has good grounds to do so
together with his client’s permission to do so and in the absence of any real
prejudice to the client or to the Commonwealth is entirely justifiable.” Id. at
368. Judge Cercone noted that the lawyer in Scheps had not previously
delayed the judicial process or filed the petition to withdraw in bad faith. Id.
at 370. In a concurring and dissenting opinion, Judge Wieand said he
disagreed with Judge Cercone’s conclusion that the trial court lacked
discretion to deny the petition, but would have held that, under the peculiar
circumstances of the case, the trial court abused its discretion. Id. at 371
(Wieand, J., concurring and dissenting).
In Sweeney, this Court held that the trial court abused its discretion
in denying an attorney’s petition to withdraw. See 533 A.2d at 474.
Sweeney hired the attorney only for the pretrial and trial stages of his case,
and could not afford to pay the attorney to represent him on appeal. Id.
The attorney helped Sweeney file a notice of appeal, and then filed a motion
to withdraw. Id. at 475. The trial court denied that motion based on: its
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11
Judge Cercone relied on Rule 2-110 of the Pennsylvania Code of
Professional Responsibility. The Code of Professional Responsibility has been
replaced by the Rules of Professional Conduct, which also contain a provision
requiring that a lawyer withdraw when discharged by a client. See Pa. R.
Prof’l Conduct 1.16(a)(3). The Rules also state that a lawyer may withdraw
if “the client fails substantially to fulfill an obligation to the lawyer regarding
the lawyer’s services and has been given reasonable warning that the lawyer
will withdraw unless the obligation is fulfilled[.]” Id. 1.16(b)(5).
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belief that Sweeney needed an “expert criminal lawyer” for his appeal; its
concern about the delay involved if a new attorney were appointed; its
reluctance to provide county funds for Sweeney’s representation; and its
belief that by entering a general appearance, Sweeney’s lawyer had
committed to representing Sweeney through the appellate stage. Id. at
476-77. This Court held that those reasons did not support the court’s
decision:
We agree that desertion of a client is abhorrent to the spirit of
the legal profession. It may also form the basis of a later
collateral claim of ineffectiveness. We also consider the trial
court’s regard for the post-sentence rights of appellant laudable.
Unfortunately, however, in the midst of its concern for
Sweeney’s right to competent appellate counsel, the cost of
transcripts and records to the taxpayers of Crawford County and
the length of time elapsing before any new counsel could
familiarize himself with the case, the trial court . . . overlooked
the one crucial factor which goes to the heart of the instant
appeal and upon which appellant premised his plea to withdraw
from further representation. That is, the trial court failed to
consider the economics of appellant’s continued representation.
The trial court insisted that appellant continue to represent
Sweeney on appeal without appointment or further
compensation. The trial court’s predicate for this flows from its
belief that because “Mr. Ambrose [appellant herein] received a
substantial fee . . . the interests of justice require that Mr.
Ambrose continue through the appellate stage.” This conclusion,
however, finds no support in the record.
Id. at 477 (citation omitted).
We also held that the trial court abused its discretion in denying an
attorney’s petition to withdraw in Roman, 549 A.2d at 1321. The client in
Roman owed over $12,000 for services rendered, and had entered into a
written fee agreement providing that if he failed to pay his lawyer’s fees, his
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lawyer could withdraw. Id. at 1322. Relying on Scheps and Sweeney, we
held that the client’s violation of the fee agreement was a sufficient reason
for the lawyer to withdraw. Id. We added, “[i]t also would be reasonable to
hold that the client knowingly and freely assented to the termination of [his
attorney’s] employment,” based on the language of the fee agreement and
the lawyer’s assertion, in his petition to withdraw, that the client consented.
Id. Finally, we noted that the lawyer “minimized any prejudice which might
occur to the client.” Id. The lawyer had provided “competent and
conscientious” representation, without compensation, and waited until he
filed an appeal before seeking to withdraw. Id. at 1323. The lawyer also
informed his client of his intention to withdraw more than one month prior to
filing the petition. Id.
By contrast, in Commonwealth v. Ford, 715 A.2d 1141 (Pa. Super.
1998), this Court held that a trial court abused its discretion by granting an
attorney’s motion to withdraw. Id. at 1145. In Ford, the attorney’s motion
was based on his client’s lack of cooperation and failure to pay him in full.
Id. However, it appeared that the client was not served with the motion,12
and the motion was filed just three days before trial. Id. After the trial
court granted the motion, the client was tried in absentia and without
counsel, and was convicted. Id. at 1143. The client appealed, and we held
that the trial court abused its discretion in granting the attorney’s motion to
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12
The client was a fugitive when the attorney filed his motion.
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withdraw. Id. at 1145. We stressed the importance of mitigating prejudice
and said, “the interests of the attorney are but one factor, and in the instant
case it is simply not enough to justify withdrawal.” Id. at 1145-46.
After careful consideration, we conclude that the trial court did not
abuse its discretion in denying Schindler’s motion to withdraw after weighing
the interests of all parties. Like the trial court, we are sympathetic to
Schindler’s financial concerns; however, “the interests of the attorney are
but one factor” to consider in assessing a motion to withdraw. See Ford,
715 A.2d at 1145-46. Criminal Rule 120(B) makes clear that a trial court
has discretion to deny a request by counsel for withdrawal, and there is no
strict rule that counsel must always be permitted to withdraw in cases where
counsel has not been paid. The trial court was free in this case to conclude
that other factors outweighed the financial burden on counsel when it denied
Schindler’s motion.
We agree with the trial court that this case is distinguishable from
Scheps, Sweeney, and Roman because Schindler did not take steps to
minimize the prejudice to Magee. See Trial Ct. Op. at 5. Although Magee
said he did not oppose Schindler’s motion, he was placed in the position of
searching for new counsel just a week before Schindler’s motion was heard.
At the time of the hearing, just two weeks before the scheduled start of trial,
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Magee had not retained replacement counsel and was unable to state how
he planned to pay for new counsel.13
Moreover, it was appropriate for the trial court to consider the
interests of the Commonwealth in the “efficient administration of justice.”
Sweeney, 533 A.2d at 481. Before moving to withdraw, Schindler
requested and received seven continuances, based on its representations
that “more time was needed for review of [Magee’s] documents in
preparation for trial.” Trial Ct. Op. at 2. Schindler emphasized that it
needed that time because the documents were voluminous. If this
voluminous record justified so much delay by Schindler for trial preparation,
it was reasonable for the trial court to assume that any replacement counsel
also would require significant time to get up to speed. Cf. Scheps, 523
A.2d at 370 (Cercone, J., noting that the attorney had not previously
delayed the judicial process).
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13
In its Statement of Questions Presented, Schindler suggests that the trial
court made “erroneous conclusions and inferences drawn from ‘omissions’ in
the factual record and its own conclusion, unsupported by the testimony
presented, that [Magee] was not given ‘reasonable warning’ about Counsel’s
intention to withdraw prior to the commencement of trial[.]” Schindler’s
Brief at 10-11. As we previously stated, we are limited to considering only
the evidence presented to the trial court; we may not consider additional
assertions that appear only in Schindler’s brief regarding discussions with
Magee. See Wrecks, 931 A.2d at 722. It is the appellant’s responsibility to
ensure that the certified record contains the facts needed for review. Id.
Based on the facts before it, including Pavloff’s representation that, as of the
hearing on his motion to withdraw, he did not know Magee’s position on the
motion, we conclude that the trial court made the reasonable inference that
counsel had not given Magee sufficient notice of its intent to withdraw just
two weeks before the trial was scheduled to begin.
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Here, unlike in Roman, Sweeney, and Scheps, Schindler “failed to
take steps to avoid the foreseeable prejudice of delaying the trial.” Rather,
Schindler waited until just two weeks before the scheduled start of trial — at
a time when the Commonwealth was ready to proceed as scheduled — to
notify the court and the Commonwealth of its concerns regarding
nonpayment. Trial Ct. Op. at 5. In the cases in which we have held that
withdrawal should have been permitted, the trial court was not placed in
such a last-minute situation. See Roman, 549 A.2d at 1323 (counsel
provided representation through trial, without compensation, before seeking
to withdraw); Sweeney, 533 A.2d at 474 (counsel moved to withdraw after
trial and after assisting client with notice of appeal); Scheps, 523 A.2d at
370 (case was not ready for trial when attorney filed his petition to
withdraw).
On these facts, the trial court was not required to deny Schindler’s
request to withdraw, but it also was not required to grant it. Having
discerned no abuse of the trial court’s discretion, we affirm the trial court’s
order denying the motion to withdraw.
Order affirmed.
Judge Bowes joins the opinion.
Judge Platt files a concurring and dissenting opinion.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/27/2017
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